# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2012 Decided July 10, 2015 Ordered Held in Abeyance February 19, 2013 Removed from Abeyance December 8, 2014

No. 11

- 1099

S OUTHERN N EW E NGLAND T ELEPHONE C OMPANY
,

P ETITIONER

v.

N ATIONAL L ABOR R ELATIONS B OARD
,

R ESPONDENT

C OMMUNICATIONS W ORKERS OF A MERICA
, AFL

- CIO,

I NTERVENOR

Consolidated with 11

- 1143

On Petition for Review and Cross

- Application for
Enforcement of an Order of the National Labor Relations
Board

George E. O'Brien argued the cause for petitioner. With
him on the briefs were Thomas P. Dowd and Jason R. Stanevich

.

Zachary R. Henige , Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief2

were John H. Ferguson , Associate General Counsel, Linda
Dreeben , Deputy Associate General Counsel, and Robert J. Englehart , Supervisory Attorney.

James B. Coppess argued the cause and filed the brief for
intervenor.

Before: T ATEL and K AVANAUGH
, Circuit Judges , and
S ENTELLE
, Senior Circuit Judge

.

Opinion for the Court filed by Circuit Judge K AVANAUGH

.

K AVANAUGH
, Circuit Judge : Common sense sometimes matters in resolving legal disputes . This case is a good example. AT&T Connecticut banned employees who in teract with customers or work in public

– including employees who

enter customers’ homes

– from wearing union shirts that said

“ Inmate ” o n the front and “ Prisoner of AT$T” on the back.
Seems reasonable . No company , at least one that is interested
in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say “Inmate” and “Prisoner

. ” But the NLRB ruled in a 2

- 1 decision that AT&T committed an unfair labor practice by barrin g its employees from wearing tho s e shirts

. Section 7 of the National Labor Relations Act protects the right of employees to wear union apparel at work. But under this Court’s precedent and Board decisions , there is a “special circumstances” exception to that general rule: A company

may lawfully prohibit its employees from displaying messages on the job that the company r easonably believes may harm its relationship with its customers or its public image. Put simply, it was reasonable for AT&T to believe that the

“ Inmate /Prisoner ” shirts may harm AT&T’s relationship with
its customers or its public image . Therefore, AT&T lawfully3

prohibit ed its employees here from wearing the shirt. We grant AT&T’s petition for review, vacate the Board’s decision and order with respect to the “ Inmate /Pr isoner ” shirts, and deny the Board’s cross

- application for enforcement. 1

* * *

AT&T Connect icut provides telecommunication se rvices throughout Connecticut

. (We will use AT&T as shorthand to refer to AT&T Connecticut.) A union known as t he Communication Workers of America represents AT&T’s employees . As part of a public campaign to put pressure on AT&T during contentious contract negotiations, the union
distributed T

- shirts to its members

. The shirts were white
with black lettering. Th e front of the shirt said “ Inmate #” and had a black box beneath the lettering. The back of the shirt said “P risoner of AT$T ,” with several vertical stripes above and below the lettering . The shirt contained no reference to
the union or to the ongoing la bor dispute.

On two occasions, t he union encouraged employees to
wear the “ Inmate /Prisoner ” shirt to work , and hundreds of employees did so

. Each day, AT&T supervisors instructed all employees who interacted with customers or worked in public
to remove the “ Inmate /Prisoner ” shirt

. AT&T issued one

- day suspensions to 183 employees who did not comply with the
directive to remove the shirt

.

1 This case was initially argued in December 2012 and then held in abeyance pending resolution of various challenges to the constitutionality of certain appointments to the NLRB. Those challenges have now been resolved in a way that does no t affect this

cas e

. See Mathew Enterprise, Inc. v. NLRB , 771 F.3d 812 (D.C. Cir. 2014).4

Publicly visible employees consist of two groups: technicians who install and repair lines at residences and businesses, and technicians who work on construction projects in public. Those p ublicly visible employees are subject to
AT&T’s appe arance standards. AT&T requires those

e mployees to present a professional appearance at all times and
to refrain from wearing clothing with “ printing and logos that are unprofessional or will jeopardize ” the “ Company’s reputation.” Notwithstanding t he appearance guidelines, in
the years before this incident, several individual AT&T employees had worn shirts printed with questionable messages and had not been disciplined for doing so. Examples
include d : “ Support your local h ookers ” (with an image of a fishing lure); “T he l ive r is evil. It must be p unished ” ; “ I’m not
d runk . I’m j ust a race f

an ” ; “ If I want your o pinion

. . . . . I ’ll

t ake t he t ape off y our m outh!”; and “ Out Of Beer. Life Is Crap .”

After the suspensions in this case , t he union filed an unfair labor practice charge. According to the union, AT&T infringed on employees’ rights under Section 7 of the Nati onal Labor Relations Act by disciplining employees who had refused to remove their “ Inmate /Prisoner ” shirts. See 29 U.S.C. § 157.

AT& T responded by invoking the “special circumstances” doctrine, a limitation on Section 7 long recognized by the Supreme Court. See Republic Aviation Corp. v. NLRB , 324 U.S. 793, 801

- 03 (1945). Under the “special circumstances” doctrine, a company may lawf ully ban union messages on publicly visible apparel on the job when the company reasonably believes the message may harm its relationship
with its customers or its public image. See5

Bell

- Atlantic

- Pennsylvania, Inc. , 339 NLRB 1084, 1086 (2003).

In arguin g that the “special circumstances” doctrine applied here, AT&T explained that it banned only employees
who interact with customers or work in public from wearing
the “Inmate/Prisoner” shirt. See Bell

- Atlantic

- Pennsylvania

, 339 NLRB at 1084

- 85 . AT&T offic ials testified that the shirts could alarm or confuse customers, could cause customers to believe that AT&T employees were actually convicts, or could harm the company’s public image more generally. AT&T was particularly concerned about how the shirts wou ld be perceived in Connecticut in light of a recent and widely publicized home invasion in Cheshire, Connecticut, in which three people were murdered. And AT&T expressed concern not only about the specific risk that customers would believe the employee wa s actually a convict, but also about the shirt’s potential negative effects on AT&T’s public image more generally

.
The administrative law judge decided that AT&T’s prohibition of the shirt s violated the Act. In a divided
decision , t he National Labor Relations Board affirmed the ALJ’s conclusion, finding that the “ Inmate /Prisoner ” shirt “would not have been reasonably mistaken for prison garb” and that “the totality of the circumstances would make it clear” that a technician wearing the shirt was an AT&T employee “and not a convict.” Southern New England Telephone Co.

, 356 NLRB No. 118, at 1 (2011). Board Member Hayes
dissented , conclud ing that the potential for the shirt “to alarm customers and thereby damage” AT&T’s “reputation was

su fficient to justify its regulation.” Id. at 3.6

AT&T has filed a petition for review of the Board’s
decision. We review the Board’s application of the law to the
facts for reasonable ness

. See New York & Presbyterian Hospital v. NLRB , 649 F.3d 723, 729 (D .C. Cir. 2011).

The “special circumstances” exception to Section 7 is designed “to balance the potentially conflicting interests of an employee’s right to display union insignia and an employer’s right to limit or prohibit such display.” Nordstrom, Inc.

, 264
NLRB 698, 700 (1982). “Special circumstances” include “prote cting the employer’s product” and “ maintaining a certain employee image.” Guard Publishing Co. v. NLRB , 571 F.3d 53, 61 (D.C. Cir. 2009).

The Board has repeatedly recognized that an employer that reasonably believes its employees’ union apparel at work may damage the employer’s relationship with its customers or
its public image may invoke the “special circumstances” exception. In one such case, employees of a grocery store
wore unio n shirts stating “Don’t Cheat About the Meat!” Pathmark Stores, Inc. , 342 N LRB 378, 378 (2004). The
Board ruled that “the slogan reasonably threatened to create

c oncern ” among “ customers about being cheated, raising the genuine possibility of harm to the customer relationship.” Id.
at 379. In another case, a company banned its employees from wearing T

- shirts depicting employee s as squashed

carcass es labeled “Road Kill.” See
Bell

- Atlantic

- Pennsylvania , 339 N LRB at 1084

- 85. The Board upheld an arbitrato r’s conclusion that the ban was appropriate because the employer “reasonably could believe that observing the shirt would unsettle the public despite the absence of explicit disparagement of the [company’s] products or service.” Id. at 1085. The Board stated: “An employer’s concern about the ‘public image’ presented by the apparel of its7

employees is, therefore, a legitimate component of the ‘special circumstances’ standard.” Id. at 1086.

Similarly, this Court has concluded that “s pecial circumstances” may justify an employer’s ban on a s hirt that
mocked a company incentive program. The incentive program was known as “WOW.” The shirts said “I don’t need a WOW to do my job.” See Medco Heal th Solutions of Las Vegas, Inc. v. NLRB

, 7 01 F.3d 710, 712

, 716

- 17 (D.C. Cir. 2012). This Court c riticized the Board’s cursory rejection of the company’s “straightforward argument that the message on
the T

- shirt was insulting to the company and would have
undermined its efforts to attract and ret ain customers.” Id.

It is true that the employer bears the burden of demonstrating “special circumstances.” See Guard Publishing , 571 F.3d at 61. But the Board has recogniz ed that

an employer can meet its burden by demonstrating a
reasonable belief that the message may damage customer
relations

– even in the absence of evidence of actual harm

. In Pathmark Stores , f

or example, the prohibited message created
a reasonable ri sk to the customer relationship , and the Board
did not require the company to present evidence that the shirts actually affected customer behavior. See 342 N LRB at 379

. Likewise, in Medco Health , this Court stated that Board precedent did not “require the employer to offer additional evidence beyond a relationship between its bus iness and the banned message.” 701 F.3d at 717 ; see also Nordstrom , 264
N LRB at 701 n.12 (employer “need not await customer complaint before it takes legitimate action to protect its business”).

In this case, we conclude that the Board applied the “specia l circumstances” exception in an unreasonable way

. In8

particular, the Board found that the “ Inmate /Prisoner ” shirt “would not have been reasonably mistaken for prison garb” and thus was not “reasonably likely, under the circumstances, to cause fear or alarm” among AT&T’s customers. Southern New England , 356 N LRB at 1. As t his Court observed in
Medco Health , how ever, the Board’s “expertise is surely not at its peak in the realm of employer

- customer relations.” 701
F.3d at 717

. And here, t he appropriate test for “special circumstances” is not whether AT&T’s customers would confuse the “Inmate/Prisoner” shirt wit h actual prison garb, but whether AT&T could reasonably believe that the message may harm its relationship with its customer s or its public image

. To resolve this case, it is enough to ask the question, as Member Hayes did in dissent: “What would you thi nk about a company that permitted its technicians to wear such shirts when making home service calls?” Southern New England

, 356 N LRB at 2

.
Citing our decision in Guard Publishing , the Board suggests that AT&T did not enforce its ban on unprofessional
clo thing in an evenhanded way , allowing other questionable shirts to be worn while banning the “Inmate/Prisoner” shirt

. But the other shirts were not nearly as problematic as the one at issue here, or at least a reasonable employer could so conclude. Moreover, no case holds that a company that on some occasions has allowed unprofessional clothing to be worn by employees is somehow estop ped from prohibiting other unprofessional clothing. The ultimate question for the Board in any individual case is whether the employer has shown a reasonable belief that the particular apparel may harm the employer’s relationship with its customers or its public image.

In short, given the straightforward evidence that AT&T introduced of the shirt’s message and the circumstances under9

which customers interact with or can see employees wearing
the shirt , the Board should have held that “special
circumstan ces” applied here

.

* * *

We grant AT&T’s petition for review, vacate the Board’s decision and order with respect to the “ Inmate /Prisoner ” shirts, and deny the Board’s cross

- application for enforcement.

So ordered.